Wrong Way Will

Today is the one-month anniversary of a singularly annoying George Will column defending the filibuster. It ran in the Washington Post on February 25, 2010. That was a long time ago—so long ago that, as of sunrise, the Beltway consensus was still that health-care reform was a dead bill walking. It was the day of President Obama’s “summit” with Congressional leaders, however, and by sunset the game had changed.

Will’s column is still bugging me, though. I’ve been unable to “get over it,” as Scalia likes to say about Bush v. Gore. So I’d better get a few of my complaints off my chest. Otherwise I’ll never be able to “move on.” Will:

Some liberals argue that the Constitution is unconstitutional. Their reasoning is a non sequitur: The Constitution empowers each chamber to “determine the rules of its proceedings.” It requires five supermajorities (for ratifying treaties, endorsing constitutional amendments, overriding vetoes, expelling members and impeachment convictions). Therefore it does not permit requiring a sixth, to end filibusters.

Non sequitur? More like a sequitur, I’d say. The Constitution’s enumeration of specific times when supermajorities are required at least suggests that the framers did not imagine that new, extraconstitutional supermajority requirements could be added at will. But let’s go deeper.

From Article I, Section 5, here’s the context of Will’s “determine the rules of its proceedings” quote:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

In today’s hundred-member Senate, the majority that constitutes a quorum to do business is fifty-one senators. Yet the cloture rule requires sixty votes—that absolute number, as distinct from sixty per cent or three-fifths—to end debate. Ending debate is business. So the cloture rule—which appears to require the presence of at least sixty senators to do business—makes nonsense of the quorum clause.

Let’s have a look at those five supermajority requirements will mentions. All of them require “two thirds.” But two thirds of what?

The first mention of a supermajority comes in Article I, Section 3, which specifies that for the Senate to convict a President or other official in an impeachment trial requires “two thirds of the Members present.” If there was only a quorum of fifty-one, therefore, thirty-four votes would be enough.

The second mention is from the portion of Article I, Section 5 that I quoted above. It just says “two thirds,” without adding “of the Members present.” But since the previous sentence has established that a majority constitutes a quorum to do business, it’s obvious that the “of the Members present” part is understood.

We’re still in Article I when the third supermajority mention comes. It’s in Section 7:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

Given that a bill’s initial passage, referenced in the first sentence of this excerpt, has already been established to require merely a majority of a quorum, it’s obvious that the “two thirds” mentioned in the second sentence is two thirds of a quorum—not two thirds of the entire membership.

The fourth supermajority provision is for treaty ratification, which Article II, Section 2 requires that “two thirds of the Senators present concur.” No ambiguity there.

At a minimum, then, if words have meaning, the filibuster rule’s requirement for sixty per cent of the entire Senate membership, no matter how many senators are out sick or what have you, is patently unconstitutional. Of course, that doesn’t mean that the Supreme Court is about to declare it unconstitutional. Even a Court not dominated by ideologues willing to appoint Presidents by fiat would hesitate to reach that deeply into the innards of the Senate.

The fact that the Senate “may determine the Rules of its Proceedings” does not mean that the rules of the Senate are the highest law of the land. Those rules, after all, can be changed by a simple majority at the outset of a new Congress. Would it be permissible for such a majority to adopt a rule that cloture can be invoked—or bills passed, or some other “business” conducted—only with the concurrence of ninety per cent of the Senate? Or a hundred per cent? Mr. Will?

One more observation on this point. The filibuster also makes nonsense of the provision in Article I, Section 3 that allows the Vice-President to cast a vote when the Senate is “equally divided.” If the Senate is “equally divided” on a motion to end debate, the motion simply fails. So the filibuster rule decrees.

Back to Will:

Liberals also say the filibuster exacerbates the Senate’s flaw as “inherently unrepresentative.” That is, the Founders—who liberals evidently believe were dolts or knaves—designed it to represent states rather than, as the House does, population.

Yes, liberals do say that. This liberal does, anyway. But James Madison fervently believed—and so argued at the constitutional convention in Philadelphia—that the Senate’s representation of states should be proportional to the population of states. Which was he, a dolt or a knave?

Filibusters are devices for registering intensity rather than mere numbers—government by adding machine. Besides, has a filibuster ever prevented eventual enactment of anything significant that an American majority has desired, strongly and protractedly?

Note the weasel words: “eventual,” “significant,” “strongly and protractedly.” Anti-lynching bills and civil-rights bills were routinely filibustered to death for most of the twentieth century. In fact, the filibuster, as a weapon of destruction and not merely of delay, was mainly used against such bills until the last couple of decades, when it began to be used against just about everything, mainly by Republicans. I guess you could say that although civil-rights laws might have been significant, and that such laws might have been desired by an American majority, and that the American majority that desired them desired them protractedly, you could also say that this majority did not desire them strongly, or not strongly enough, or just not as strongly as the minority that hated them hated them, and that, anyway, such laws were eventually enacted, so what’s the problem? You could say that. But, if you did, you would be a weasel.

Hendrik Hertzberg is a senior editor and staff writer at The New Yorker. He regularly blogs about politics.

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